It's not a constitution of free stuff

Every person has the right to clean and safe water in adequate quantities. [Art. 43 (1) (d), Constitution of Kenya]

Humans don't create water. They don't create the land on or in which water is found. Humans don't create the ponds, rivers, lakes, seas, oceans and aquifers where water is found. They are not responsible for the clouds that fall to Earth as rain. Humans can't create water. Humans can only exploit water. For food. For manufacturing. For transport. For profit.

Kenya's Constitution places an onerous responsibility on Kenyans to protect and conserve the environment that is the source of the water exploited for profit. The manner in which the environment will be protected and conserved is a matter of legislation: the Forest Conservation and Management Act, Water Conservation and Management Act, Wildlife Conservation and Management Act, Climate Change Act, and Environmental Management and Co-ordination Act, and the numerous regulations, guidelines and other statutory instruments issues by the Government.

Legislation is a reflection of the representative nature of the Government. Voters choose the elected representatives. Elected representatives form the executive and legislature. Together, the legislature and executive enact laws. The laws reflect the collective constitutional settlement of the people that natural resources must be protected and conserved for the greater common good and that the accruing benefits must be equitable shared by the people - including, dare I say, the protection of the right of the people to clean and safe water in adequate quantities.

No one is saying that water services shall be provided for free by (or under the authority of) the Government. (Water services are the method by which clan and safe water in adequate quantities is supplied to the people.) If it were left to "the market" to decide, those who couldn't afford the "market price" for water services would be denied those services. The market, and its "efficient allocation of capital", would ignore the people who couldn't afford to pay for water services and prefer those who could pay he highest rate. Anyone who thinks that this is what the Constitution of Kenya intended was not paying attention to what the majority of the voters who supported the Harmonised Draft Constitution wanted or demanded.

It isn't enough to bring forward economics arguments inspired by dead Austrians to show that in the long run the provision of water services under the current framework will "fail". One must also demonstrate that this economics lesson has the support of the people, in whose name the Constitution was adopted, and that the people collectively want to deny the least among them access to any form of water services if they are incapable of paying a market price. Constitutional rights, it turns out, are a reflection of the highly personalised nature of human relationships as opposed to the impersonal economics principles beloved by statisticians and similar small animals.

Kenyans adopted a Constitution that eschews the extremism of libertarians. It is not libertarian in nature at all. It doesn't contemplate "small government". Instead, it promotes collectivism of a kind that offends free-market zealots. It is not extremely collectivist either; after all, it does not even remotely propose "free stuff" for those who don't have stuff. It attempts to strike a balance between the two extremes and it is up to us as individuals, our elected representatives, and the laws they enact, to find that balance.

Handshakes, legacies and divorces

Deputy President William Ruto has done much to draw a line between his role in the Government of Uhuru Kenyatta and his role as the United Democratic Alliance and Kenya Kwanza coalition flag-bearer. It rings a bit hollow when one remembers that scarcely five years ago, he rattled off a string of promises, in the presence of his running mate, that have not been fulfilled - and the ones that have been fulfilled have resulted in economic catastrophe for millions of Kenyans. The most outlandish promise, in my estimation, contained the following sentence: "the stadium in Kamariny, which is historic". So it isn't that far-fetched for many voters to tie him to the promises of his running mate in the 2017 general election, never mind his protestations that he is his own man with his own agenda. He said what he said.

The Deputy President has a long history in elective politics at the national level. He has been assistant minister, minister, and deputy president. He has stood on the wrong side of history on many issues of consequence, including the efforts to sabotage the Ghai Draft constitution in 2005 to actively campaigning against the Harmonised Draft Constitution published by Nzamba Kitonga's Committee of Experts in 2010. Though he has not been convicted of corruption-related offences, few are persuaded that his dealings in the land on which the Weston Hotel stands point to a high level of probity. It is immaterial that senior members of the Government he serves have been accused, by the president no less, of aiding, abetting and participating in the theft, loss, misappropriation or mismanagement of two billion shillings every day.

The attempts by the deputy president to lay the blame for the current national economic woes at the feet of the Handshake ring hollow when every economist worth his salt can trace the selfsame woes to the policies of the Jubilee Alliance from as far back as 2013. He cannot, on one hand, claim credit for the apparent success of the "10,000km roads' programme" while at the same time distancing himself from the consequences of that programme on the cost of credit in the domestic market.

A leopard doesn't change his spots and the same is largely true of the Kenyan politician. He may flit from one party to the next, but at his core, he remains largely unchanged. His values and principles, such as they are, carry through the several political parties he hops to, and they are reflected in the kinds of policies he adopts, the language he uses to sell his manifesto - and the suspicion, warranted or not, he arouses in the people whose votes he seeks. The deputy president is no different. He is quite good at saying persuasive things about his plans. He has a good propaganda machine that has done a good job of whitewashing is political history. But even in the battle of the opinion polls, it is still a toss-up whether or not he will ride to victory or slink away from the national political plane in disgrace.

Uhuru Kenyatta is not on the ballot in 2022, but his intimate involvement in the stitching together of the Azimio la Umoja One Kenya Alliance has given the deputy president a wedge with which to pry himself away from the political record of the Jubilee government. After the acrimonious way in which the Jubilee leaders have dissolved their political alliance, it is not surprising that the deputy president has every intention of politically putting the president on the ballot, linking him (and his apparent failures) to the Azimio flag-bearer, Raila Odinga. If the deputy president can paint The Handshake as the true Government, and himself as the maligned party, and if the voters agree with him, then his chances at the hustings are better than even.

It is now moot that the presidential ballot will be fought with the shadow of the incumbent president looming large over the decision of the voter. Many voters are apathetic, at best, but they may vote one way or the other on the strength of their feelings towards the president. If they credit him with positive political and economic outcomes, they may vote for his preferred candidate (or against his former partner whom they may see as an unprepared and ungrateful menace). If they blame him for their current economic woes, they will ignore the dozens of praise-singing billboards about roads, bridges, electricity and healthcare, and cast their votes for the deputy president, whom they will see as unfairly targeted for simply seeking that which he was promised in 2013 aka "Kumi ya Uhuru na Kumi ya Ruto".

No jokers wanted

It is possible that that the dog and snake-meat export promoting presidential candidate has a well-thought economic plan to deal with the serious debt question that faces the next government after the 2022 general election. It is possible. For example, it is possible in the same way that with enough theoretical physics one can show how a full-grown adult elephant can balance on the head of a pin. What kenya faces today is not theoretical; not even the expert massaging by the Governor of the Central Bank of Kenya can hide the parlous state of the national economy. What Kenya needs, instead of unserious promoters of dead ideas, is a candidate serious enough to tell the truth.

I admit that I am biased against anyone who rose to the rank of Inspector in the Special Branch, especially anyone who did so at the height of the second president's regime's extensive violation of human rights. It is possible that our ex-secret-policeman has repented his sins, if not of commission, surely of omission, given the evils that Special Branch officers committed under the behest and direction of their Commander-in-Chief. He has not said publicly if he dissociates himself from those evil deeds and going by his promise to hang criminal offenders (with hemp ropes), I am not sure he has any intention of repenting. But that is neither here nor there.

Kenya's economic current problems are not only about the current account, though the current account deficit is worrying. They are not only about the challenges in effective revenue management (collection and spending), though revenue management has defeated three regimes back to back. They are not even only about the looting of the state's treasuries, though grand graft has proven a massive enabler of other crimes, violent and otherwise. It is all these and so much more. But worst of all, it is the nature of the public debt and the manner in which that public debt has ballooned.

Enough has been mentioned about the difference in quality between the Kibaki-era public debt and the current one, as well as the speed with which Kibaki-era debt grew compared to this regime. Little, if any, has been mentioned of the dereliction of duty by the Houses of Parliament. The way the National Assembly, especially, played its oversight role through the several Finance Bills, Appropriation Bills, Supplementary Appropriation Bills and other legislators that occasioned the additional expenditure of public funds should be scandal in and of itself, the subject of keen examination by presidential and parliamentary candidates of all stripes. Instead, a pro-psychotropic-substances candidate is of the opinion that the best solution is to round up (or breed, who the hell knows at this moment, right?) dogs and snakes for the export market! This lack of seriousness, and the adulation that it has invited, must worry everyone who has two functioning brain cells.

We know, and the realisation is dawning on those who have argued otherwise, that the public debt is unsustainable. That something drastic must be done to address the crisis. That it is not expansion of incomes and, consequently, income taxes, that is the solution. That it is not rationalisation of the public service, golden handshakes and parachutes all around, that will slow down the debt treadmill. Not even binning infrastructure plans of dubious economic value will cut the debt down to manageable levels. It is all these, and then some. More Kenyans must be allowed to keep more of their incomes than is currently the case. More Kenyans must be facilitated to invest in the domestic economy than is currently the case. And Government, in all its iterations, must spend greater proportion of what collects to facilitate those two propositions. If we must pay back what we owe, and pay it back without jeopardising the national economy - or damaging it irreparably - then we cannot entertain asinine suggestions about the billions of dollars we shall earn exporting dogs and snakes to god knows where. That kind of un-seriousness is a threat to national economic wellbeing.

Cast them out

While it is arguable that the Constitution of Kenya has an architecture that is maddening and inspiring in equal measure, there is one immutable fact about it: only the people who adopted, enacted and gave themselves the Constitution have the power to suspend it. It is not in the power of presidents, prime ministers, cabinet secretaries, parliamentarians, county governors, members of county assemblies, the securocracy or civil society to suspend the Constitution. That power is reserved exclusively and to the total exclusion of all others in The People.

It is fashionable among the political classes, after their failures of imagination, and the public's suffering of the consequences of those failures, to promote the suspension of the Constitution as part of a grand solution to political problems. The I-Will-Legalise-Bhang presidential candidate joins a long line of Quickmatt Julius Caesars who are arrogant enough to think that the powers of a dictator are all they need to right the ship of state and solve the problems of the people. He echoes the most recent demands that were made by political windbags of the ruling coalition at the height of the last general election when it seemed like their flag bearer was suffering at the polls. This constitutional imbecility must be nipped in the bud.

Kenyans have struggled for decades to overcome the dictatorship of their political masters. Many Kenyans have been murdered, jailed, exiled and violently assaulted for fighting against dictators. The Constitution, flawed as it is, is a testament to the struggle for self-determination by the people. Any presidential candidate that pines for absolute control over the affairs of the state, and the self-arrogation of the power to decide what rights the people shall enjoy, and the arrogance to pick and choose which fundamental freedoms to protect, must be cast out of the political arena like the constitutional skunk that he is. His constitutional values are a pox, deserving of not just inoculation but total eradication from the national political psyche. He deserves neither respect nor praise; he deserves nothing but the unremitting opposition of a people still fighting to be truly free.

Let it ring forth in the agora that Kenya does not need a presidential saviour. What Kenya needs is a politician capable of forging the national will into a commonweal, a resurrection of the Spirit of Harambee, where Kenyans of all stripes and shades will pull together towards a common goal: health, wealth, prosperity and peace. kenya does not want or need a presidential daddy and mummy. Kenyans are not infants to be told what they need. The days of "Kanu ni baba na mama" were buried in December 2002 when Kenyans sang "Yote yawezekana bila Moi!" and no one is looking to bring back the glory days of one-party rule and imperial presidencies.

Kenya faces serious problems and it needs serious politicians to help solve them. If the only thing one is bringing to the table is a desire to rule with untrammelled power, one demonstrates a lack of seriousness so colossal it is amazing that anyone even listens to him. We don't want dilettantes to be in charge of national affairs. It is time that we awoke to our responsibilities as citizens and banished the unhealthy desire for dictatorial powers in the same ash heap that we buried Kanuism and Moism.

Roe v. Wade, in Kenya

The Constitution of Kenya is a hodgepodge of constitutional principles and styles from across the word: South Africa, India and the United States of America. As a result, though it is lauded as one of the "most progressive constituents in the word", it lacks a certain coherence. Even reading the Preamble, one is struck by the fact that it is incapable of articulating a uniting philosophy. It does not have the We-Are-The-First sensibility of the US's preamble; nor does it ring with the fervour of self-determination in the Preamble to the Constitution of India; nor even the declaration of self-determination in the Constitution of South Africa. The Constitution of Kenya is proof that constitution-writing-by-committee doesn't always work.

What the makers of the Constitution of Kenya borrowed from the United States of America isn't even found in the US Constitution: the securitisation of the public service and the culture wars between the broadly progressive left and hard-line white-supremacist right. Of the most destructive elements of US constitutionalism that Kenya has adopted, are the White Supremacist Christian values such as the definition of family and the black-and-white fight over the right to life. In respect of the right to life, Kenya has adopted the language of live-begins-at-conception favoured by the White Supremacist Christian right wing of US politics. Article 26(4) states that "abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law".

The US constitution does not expressly mention the right to life or abortion. The Indian constitution protects life but does not mention abortion. South African declares that everyone has the right to life and the right to healthcare, including reproductive healthcare (which has been interpreted by many to include the right to abortion). Kenya is the only one that goes into some detail regarding abortion, in addition to the right to health care under Article 43(1)(a). Kenya's abortion constitutional provisions are a reflection of the religious and cultural wars among US political actors, and the recent annulment of the US Supreme Court decision in Roe v. Wade, decided in 1973, will further entrench the US cultural wars in Kenya's constitutional evolution.

It is moot that the Government of Kenya relies a great deal on development partners to finance public health services. Among those development partners who help finance health services in Kenya is the federal government of the United States. The funds provided by the US government are provided in accordance with laws passed by the US Congress, including a law known as the Hyde Amendment which bars the use of federal funds to pay for abortion, except to save the life of the woman, or if the pregnancy arises from incest or rape. President Joe Biden eliminated the Hyde Amendment in the 2021 US federal government budget, but the recent Supreme Court decision on Roe v. Wade will surely complicate matters as the Republican Party, which is wholly opposed to abortion, is on the legislative ascendancy and Joe Biden's legislative plans are unlikely to survive the coming losses the Democratic Party will experience n the November 2022 mid-term elections.

Though Kenya is not directly impacted by the decision to overturn Roe v. Wade, the effects of that judgment will certainly affect the US federal government (including its financial assistance to overseas partners), and consequently, Kenya must be prepared to weather the cultural war that is surely to follow. But because we seem not to have developed a constitutional language, philosophy or principle regarding individual liberty, it is likely that the debate that will ensue will be just as incoherent as the preamble to our constitution. Ministries of faith (mainly Christian) that are affiliated with like-minded US (mainly Christian) ministries of faith will lead the debate. Government officials will try to square the round peg of US federal government rules in Kenyans' square peg of reproductive health care needs.

I encountered a band of teenage girls, they didn't appear older than sixteen or seventeen, who were discussing "kutoa mimba ya miezi tatu". At first glance, they wouldn't appear as if they knew anything about anything. But taking a moment to reflect, it is clear that the proportion of mostly-young Kenyans facing difficult reproductive healthcare questions is growing. More and more young people are engaging in unprotected sexual relations, the majority of which is experimental, though a growing number is coercive. Many girls are getting pregnant and are faced with extremely limited reproductive healthcare choices, whether due to legal restrictions, or cultural and religious ones. It is reckless to ignore this growing cohort of young people on the basis of religious, cultural and political decisions made in a country so far away like the US.

Kenya's constitutional debates are obsessively about the organisation of the Government rather than the Bill of Rights and the realisation of the principles enshrined in the Bill of Rights. We worry about the sharing of political power among the same cadre of men to the almost total exclusion of the advancement of the rights of the individual to make choices regarding her or his liberty, life and body. As a result, we are led by the nose by an extremist and vocal religious minority in support of racialist white supremacist principles that have proven to be destructive throughout mankind's history.

Assholes one and all

I love walking. Despite my utter, utter loathing of crowded pavements, uneven road surfaces, and the total lack of street furniture of any kind, I love walking. If I were faced with the choice of commuting by car or PSV to the office or walking, I'd choose walking save for those days when the heavens play merry hell with the rainstorms and extreme sun. I love walking even though the Green City in the Sun is, nowadays, more and more the Slum in the Sun. So you can understand my feelings for the City Fathers and their mistresses for how far they have fucked up the City. Suffice it to say, my feelings will not be described by anyone as close to warm.

Every City Father since John Gakuo has done little to improve the liability and walkability of this City. Not Le Kidero. Not His Sonkoness. Not I-Am-Not-A-Drunk. Not the fucking general and his merry band of fucking "developers". Under their suzerainty, the City is a series of walled-off enclaves designed to put the hoi polloi in their place and to tend every municipal privilege under the sun to the wabenzi. The only variation, if that, is that among the wabenzi, the hierarchy of privileges is based on ones degree or melanation.

What makes my absolutely negative views of the City Fathers simmer like a boiling sea of magma in a no-longer-dormant volcano is that I cannot lay the blame on my true targets: the "urban planner" and "architect" that plays handmaid to the City Fathers. Allow me to give an example of why I my rage is slowly boiling over.

Some time recently, the Commander-in-Chief inaugurated the CBK Pension Towers on Harambee Avenue. It is sandwiched between Vigilance House and Harambee House Annexe (that seven-hundred-billion-shillings boondoggle from hell). It is an impressive building, and a nice addition to the City's skyline, with its glass facade and sharp curves. When it was finished, before the assholes got involved, it made proper allowance for pedestrians. After the assholes got involved (assholes who are taking their cue from he assholes in Vigilance House and Harambee House Annex and every government building on Harambee Avenue), pedestrians became a security risk and so the pedestrian pavement is going to be encircled by a seven-foot-high steel fence and the pedestrian can walk on the road for all these assholes care.

This kind of assholery is not the preserve of the asses in charge of CBK Pension Towers. City Hole has its fair share; its frontage on Wabera Street is verboten to pedestrians. KCB has gotten in on assholery as well; its frontage on Nkrumah Avenue has so many "security" features, you might think your are entering the Baghdadi Green Zone at the height of the Moqtada al-Sadr insurgency! Hilton Hotel started this trend of securitising public spaces to the exclusion of pedestrians and the current crop of City Fathers has bought into that asinine policy - aided and abetted by asshole urban planners and architects.

This shit makes it difficult to walk anywhere in comfort in this fucking City. No wonder everyone wants a car. Not that car-ownership is a breeze. On-street parting is notable for its scarcity. The car parks in the CBD are notoriously overcrowded; double parking is recklessly rife. In fact, the only sensible car park in town is the one at the Holy Family Basilica and at five hundred bob per day, incredible value for money. The rest of the parking spots in the City are shitty places where your car is exposed to the elements and the vandals that seem to operate with the tacit approval of the fucking City Fathers. Anyone that can afford to drive into the CBD hates the experience. Universally hates it.

I hate these people. I hate them with the passion of a thousand suns. I have absolutely no doubt that they are hated at home and it is the only reason they bring their level of shitholery to their work. They are fragile little man babies with the necessarily massive egos of small-minded assholes. The only people that like them are the assholes that win massive tenders to bring the excreta they call "public works" to fruition. I hope all of them are dipped in honey and stuck up to their necks in mounds swarming with fire ants for the rest of eternity.

Have they read us right?

"I wrote the constitution" can be taken as the typical hyperbole of a politician seeking electoral glory, a statement that all know is made tongue-in-cheek. It is rare that the maker of such a statement expects to be taken seriously or, indeed, he himself takes the stamens seriously. Ordinarily, it is not considered a lie but merely an exaggeration. But, as we have pointed out in the past, Kenya plays differently in this league. Lying is so commonplace that it is safer to start from the presumption that a politician is lying than the other way around.

Quite often such a lie is part of a pattern of behaviour that paints the liar in even dimmer light. The problem is that the liar assumes that those he is lying to are so stupid that they will not even attempt a basic fact-check, and so he gets bolder and tells even bigger whoppers, attempting to paint himself as the paragon of political and constitutional virtue, and all his rivals as second only to Beelzebub for their chicanery, lying and unfitness for public office.

Were it a mere decade ago, the liar could hope to get away with his lies. In the here and now, with affordable internet bundles for the vast majority of people, access to multiple sources of information and databases quickly puts paid to most of the lies told in the heat of political combat. One can no longer allege, for example, that a person is an alum of a university and hope to get away with the lie without being called out for it by online sleuths.

But our vote-seekers reserve the biggest raspberries for their record of thievery and they amass massive legions of praise singers whose only job is to shout down the truth about the thieving ways of their masters. It is possible for a salaried politician to strike it big. It is possible in the same way that it is possible for lightning to strike twice in a bottle. Kenya does not traffic in "possible". In Kenya, the salaried politician makes his own luck - quite often in aggressive and inventive ways.

It begins with a truth that is verifiable and then it takes on a life of its own and consumes his whole existence. It is why we know, in our hearts of hearts, that what the peddle as truth is the largest load of malodorous buffalo excrement this side of the Maasai Mara. What is worse, they don't care anymore when they are caught in the lie. They pretend that the truth-seeker and truth-teller liv in an alternative universe, and that the universe of lies is the one that is real. This fantasy that they paint of themselves blinds them to the anger that is bubbling under the surface among the people whose votes they seek.

They ignore the goings-on in far-flung places like Sri Lanka where they have burnt down the ill-gotten wealth of some of their storied politicians. They seem to think that so long as they toss a pittance or two our way, we will be so grateful for the crumbs from the high table that we won't let go of the reins on our rage and give it its head. They imagine we shall remain quietly docile for all eternity.  They have invested their political and material future on that assumption. Only time will tell if they have read us right.